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JUDGMENT
LAMPTEY, JA:
On the 18 June 1993, Society De
Promotion De La Pache
(hereinafter referred to as the
“plaintiff co”.) sued the Owners
and parties interested in the
Ship or Vessel M/V Hilda “A”
(hereinafter referred to as
‘defendant co’.) and claimed the
reliefs stated in the writ of
summons. A statement of claim
running into six paragraphs was
annexed to the writ of summons,
in addition to the statement of
claim three bills of lading in
the original were annexed to the
writ of summons. On the date of
sealing the writ of summons,
lawyers acting for plaintiff co.
filed a motion on notice for the
arrest of the vessel, Hilda 'A'.
Defendant co entered appearance
on 25 June 1993 and its lawyer
filed an affidavit opposing the
application for the arrest of
the vessel, Hilda 'A' which was
at that date berthed at Tema.
The defendant co. acting by its
lawyers filed a statement of
defense on 23 July 1993. This
statement of defense ran into 21
paragraphs. The defendant co.
did not counter-claim for any
relief. The record of appeal
shows that it was the defendant
co. that set down additional
issues for trial in the summons
for directions filed on 11
October 1993. I did not find
the summons for directions filed
on behalf of the plaintiff co.
in the record of appeal. Be that
as it may, the reliefs sought by
plaintiff co. were formulated
and clearly itemised in its
amended statement of claim.
After hearing on the merits the
trial judge dismissed the whole
of the plaintiff co.'s claim and
awarded costs against it. The
plaintiff co. was dissatisfied
and aggrieved by the judgment
and appealed to this court on a
number of grounds of appeal.
In order to appreciate and
understand the issues of law
raised and argued in this
appeal, I am of the view that
the reliefs sought by plaintiff
co. must be reproduced in full,
especially since defendant co.
did not counter-claim for any
relief. The plaintiff Co.
claimed the reliefs following: —
"(1) A declaration that the
discharge in Tema of fish
consigned by the plaintiffs to
parties in Abidjan and Lagos is
wrongful.
(2) An order upon the defendants
to deliver the fish consigned to
parties in Abidjan and Lagos.
(3) In the alternative an order
upon the defendants to release
the said fish to the plaintiffs
subject to the cost of freight
to the respective destinations
of Abidjan and Lagos.
(4) Damages for wrongful
conversion
(5) Perpetual injunction
restraining the defendants from
discharging 1782.30 tonnes of
fish at Tema
(6) Quia timet injunction.
(7) An order upon the defendants
to pay all plaintiffs total and
other expenses incidental to
defendant's wrongful,
appropriation of the plaintiff's
fish .......”
The case of the plaintiff co
briefly and simply stated is
that defendant co. entered into
an agreement, evidenced by three
separate bills of lading with
plaintiff co. under and by which
defendant co.’s vessel, Hilda
'A' was to accept for carriage
by sea 1782.32 tonnes of fish
consigned as per the said way
bills to Abidjan, Tema and
Lagos. The defendant co.’s
vessel, Hilda 'A' dully and
regularly accepted 1782.32
tonnes of fish on board in
Mauritania. Contrary to the
terms and conditions in the
three bills of lading, the
captain of the Hilda 'A'
discharged and off — loaded all
the 1782.30 tonnes of fish at
Tema, acting on the instructions
of the Managing Director of
defendant co. The case of the
defendant was stated at great
length at paragraph 16 & 17 of
the statement of defence as
follows:—
“16 The defendant says that its
vessel do not apply for hire but
carry its own cargo consequently
when it went for 1782,30 tonnes
of fish it did not require any
bills of lading. The defendant
will contend that a bill of
lading is only prima facie
evidence of a contract between
the ship owner and a shipper not
the contract itself and that at
no time did the defendant agree
to carry the plaintiffs fish for
a fee or otherwise.
17 The defendant says that the
plaintiff not being the owner of
the vessel or a charter had no
right to issue the bill of
lading and the same were
irregular and void" I must add
that the statement of defense
brought into focus transactions
between defendant co and other
companies.”
The first ground of appeal
argued by counsel for plaintiff
co. was that the judgment was
against the weight of evidence.
Counsel submitted that plaintiff
co, discharged the burden if
S.10(1) assumed under and
S.11(1) of NRCD 323. He
contended that there was
undisputed evidence that
defendant co. breached the
contract of carriage of the fish
it accepted to discharge and
off-load as per the bills of
lading in evidence. He pointed
to passages in the judgment by
which the trial judge made a
finding that defendant co.
breached the terms of the
contract of carriage. He argued
that the trial judge erred in
law when he went further and
held that IPCO acted as a common
agent between plaintiff co. and
defendant co. The trial judge
erred when he held that the
seizure of the fish was lawful.
He submitted that the trial
judge misdirected himself when
he considered extraneous
matters, such as the existence
of batter agreement between the
parties. He submitted that on
the evidence before the court
the judgment cannot be supported
in law. In reply, counsel for
defendant co. submitted that the
evidence before the court
established that plaintiff co.
failed to prove its claim. He
made copious references to the
evidence of Dw2, Capt. Acquah
which showed that he Dw2 acted
on the express instructions of
the owners of the vessel, Hilda
‘A’. He contended that Dw2
Capt. Acquah did not enter into
any agreement with the plaintiff
co. He submitted further that
there was no contract of
carriage of fish between the
defendant co. and the plaintiff
co. He contended that there was
a batter agreement between
defendant co. and plaintiff co
and this what the trial judge
believed and accepted. He
concluded his statement thus:
"In his lordship's view, the
bill of lading did not evidence
any new agreement independent of
the batter agreement and for
this reason he stated further
that the basis of
the plaintiff's claim was
therefore completely eroded. I
must observe that the plaintiff
co. did not sue for breach of a
barter carriage by sea agreement
between it and the defendant co.
The plaintiff co sued for breach
of contract of the defendant co.
pleaded at paragraph 4 of the
statement of defence that it
defendant co. had an existing
agreement with a Namibian
company called Erongo Sea
Products Ltd. The defendant
pleaded at paragraph 6 of the
statement of defense another
agreement with a Nigerian Co.
called International Processing
Co. Ltd. I fail to see the
reason behind these pleadings
these companies are not parties
to the action before the court.
Again at paragraph 9 of the
statement of defense the
defendant co. pleaded as
follows.
“9. It was further agreed that
the defendant’s vessel known as
Hilda ‘A’ should together carry
a further 790 tonnes of gas oil
to the plaintiff said transfers
………….”
To pause here for a moment, the
defendant co. had not identified
plaintiff co. as a party to this
“further agreement.” Again the
obligation undertaken by
plaintiff co. under and by
virtue of this further agreement
was entered into with IPCO it
becomes clear that plaintiff co.
not being a party is not bound
by this “further agreement”.
Indeed the terms pursuant to
which gas oil was supplied to
plaintiff co. enjoined IPCO, and
not the plaintiff co., to pay
for the gas oil. This was
pleaded at paragraph 10 of the
statement of defendant thus:
“10. IPCO further arranged with
the plaintiff to pay the
defendant the gas oil supplied
to it with fish and undertook to
pay the defendant if the
plaintiff defaulted …………” I do
not read into paragraph 10 of
the statement of defense any
right power or authority given
to defendant co. by plaintiff
co. to fraudulently and
wrongfully discharge and off
load fish undisputedly, bona
fide property, of plaintiff co.
and not property of IPCO at
Tema. In my opinion it was
fraudulent and mischievous on
the part of defendant Co. to
plead at paragraph 14 thus:
“14. The defendant says that the
purported consignees other than
the defendant was in breach of
the accord reached between the
plaintiff and the defendant
acting through IPCO …………..”
There was on pleadings no such
accord between the plaintiff co.
and the defendant co. The
accord was between IPCO and
defendant co. The plaintiff on
the pleadings took a benefit
under the accord but plaintiff
co. was in law not liable to
defendant co. The accord did
not give defendant co. a lien on
the fish belonging to plaintiff
co. In my view if plaintiff co.
failed to supply the defendant
with fish the right and power
given to the defendant Co.
pursuant to the accord was a
right to demand payment from
IPCO for services rendered in
the first place and not a right
to claim property of plaintiff
co.
Indeed the evidence led by
defendant Co. through DW2 Capt.
Acquah was in conflict with the
defense put forward in the
pleadings. Dw2 testified that he
was under strict orders from the
owners of the Hilda ‘A’ to take
instruction from one Abass who
was resident in Mauritania as to
what goods he accepts for
carriage on board Hilda ‘A’. He
stated further that Abass would
instruct him as to the
destination of the goods, he Dw2
accepts on board the Hilda ‘A’.
It was not the evidence of Dw2
that he was sent by his Managing
Director to Mauritania to load
fish belonging to the ship owner
of Hilda ‘A’ and to bring the
fish straight back to Tema. On
the evidence before the court, I
have no doubt that Dw2, Captain
Acquah received and took on
board the quantity of fish which
were to be discharged and
off-loaded according to the
express and clear provisions and
terms on the three bills of
lading. Dw2 as a captain of a
ship know or ought to know the
efficacy and purpose of a bill
of lading. Indeed Dw2 Capt.
Acquah knew and was aware that
he Dw2 was not the owner of the
fish on board his vessel. Again
Dw2 knew he was not the owner of
the fish on board his vessel.
Again Dw2 knew he was not the
owner of the vessel. On this
issue he testified as follows:
"Q. In Exhibit B you agreed to
go by the instruction from SPP.
A. As I said earlier, I am
only the master of the ship and
not the ship owner ……..”
"It is helpful and desirable to
reproduce the relevant contents
of exhibit B as follows:—
"Nonadhibon
31 May 1993
1. The undersigned Francis K.
Acquah Captain of the vessel
"HILDA A" and representing my
Company KIKU CO. LTD hereby
attest that: …………………………..
2. That I have received
1,782.30 metric tons of fish
from the company SPP/IES in
Nonadhibon.
3. I accept to transport the
said cargo to its destination
viz
ABIDJAN (impromer) ......
1,005.27 M/T
TEMA (TIKU CO LTD) … 406.17 M/T
LAGOS (IPCO) .......... 370.86
MIT
4. I confirm that my company
Kiku Co. Ltd. is transporting
the cargo at the rate of 70$
(seventy U.S dollars) per metric
ton up to its port of
destination ………………”
In my view Exhibit B in plain
and clear language spelt out the
conditions and terms of the
contract of carriage between
plaintiff co. and the defendant
co. By the terms of Exhibit B
and the contents of the bills of
lading the respective
obligations and duties in law of
the contracting parties enjoined
Dw2 Capt. Acquah perform the
obligation and duly he undertook
to discharge and perform the
duty authorised and empowered
representative of Kiku Co. Ltd.
It was not in law, open to Dw2
Capt. Acquah to unilaterally
change, alter or amend the terms
of the documents Exhibit B,
Exhibit Al, Exhibit A2 and
Exhibit A3. He had in law no
right or power as a captain of
the ship to breach these
obligations and duties. In law
failure of on the part Dw2 Capt.
Acquah to strictly and
religiously carry out and
discharge the conditions and
terms in these documents
amounted to a breach of the
contract of carriage. The
evidence on record showed that
Dw2 Acquah prior settling sail
for Mauritania was instructed to
contact and to meet with Abass
in Mauritania and to take any
and all instructions from
Abass. In his evidence he
stated thus:
“When he had received on board
his vessel a total of 1782
tonnes of fish, he went to the
office of Abass for the
necessary documents particularly
the clearance to enable him sail
from Mauritania". In the
present appeal the necessary
documents which enabled Capt.
Acquah, Dw2, to sail out of
Mauritania were the three bills
of lading, Exhibits Al, A2 &
A3. On the evidence on record
part only of the fish was as per
the bills of lading consigned to
Tema. The shipowner defendant
co. was not on the evidence
before the court, the true and
lawful owner of the fish on
board its vessel, 'Hilda A' then
under the command of Capt.
Acquah, Dw2. The law on this
issue is clear and plain and is
as stated in his statement of
case by counsel for SPP
thus:
“According to Carver's Carriage
by Sea, Vol. 2, 13th Ed.
Chapter 16 page 1110 - 1112
Delivery under Contract
The Shipowner must generally see
that the goods are delivered to
the person to whom he has
contracted to deliver them. That
is to say, as a rule to the
person named as consignee in the
bill of lading or to the
assignee of the person who is
empowered by the bill of lading
to make an order or assignment
of it .................” In the
instant case, DW2 Capt. Acquah
did not give evidence that in
respect of the fish consigned
respectively to Abidjan and
Lagos he had the consent and
authority in writing of the
persons named as consignees in
the bills of lading for Abidjan
and Lagos to discharge and off
load the fish consigned to
Abidjan and Lagos at Tema and to
defendant co. The conduct and
action of Dw2 Capt. Acquah, in
law, amounted to a conversion of
the fish intended for the
consignees in Abidjan and
Lagos. Capt. Acquah’s conduct
and action amounted to a breach
of the contract of carriage of
the fish to Abidjan and Lagos.
The English case of
Skibsaktiesel Skapet Thor v.
Tyrer (1929) 35 L. IL 12 163 at
170 cited by counsel for S.P.P
as contained the statement
following:—
“It is perfectly clear law that
a shipowner who delivers goods
without production of the bill
of lading does so at his peril
……………… Delivery to a person not
entitled to the goods without
production of the bill of lading
is prima facie quality of
conversion of the goods and
breach of contract.”
In the instant appeal Dw2 Capt.
Acquah did not produce the
authority and consent of S.P.P
to discharge and off load the
whole consignment of fish at
Tema. I have not found a shred
of evidence that ownership of
the total consignment of fish
was in defendant co. The
consignment of fish intended to
be discharged and off loaded at
Tema must and ought at all
material times to be dealt with
and treated separately and
distinctly from the consignment
of fish to Abidjan and Lagos. On
this issue I reproduce the
passage following from carrier's
Book:—
“As between the owner and
shipper of the goods and the
captain the bill of lading fixes
and determines the duty of the
latter (the captain) as to the
person to whom it is (at the
time of the delivery of the
goods) the pleasure of the owner
of the good should be delivered
……….. The owner of the goods may
change his purpose at any rate
before the delivery of the goods
themselves, or of the bill of
lading to the party named in it
and may order the delivery to be
to some other person to B
instead of to A.”
It is clear from the statement
of the law that the power to
make changes in relation to the
ultimate consignee of goods on
board a ship covered by a bill
of lading vested solely and only
in the owner of the goods and
most certainly not in the owner
of the ship. In the instant
case, the Managing Director of
Kiku Co. did not have a legal
right to order changes in
respect of and touching upon the
consignment of fish intended and
destined for Abidjan and Lagos.
The evidence on record was that
he, it was who ordered Dw2 Capt.
Acquah to wilfully and
contemptuously breach the
contract of carriage of the fish
intended and destined for
Abidjan and Lagos respectively.
In my opinion, the defendant co.
breached the contract of
carriage only in respect of the
consignment of fish intended for
Abidjan and Lagos. The finding
and conclusion of the trial
judge on this crucial issue
cannot be supported in law.
The trial judge regrettably
failed to appreciate the real
issue in dispute between
plaintiff co. and defendant co.
Thus in formulating what he
perceived and understood as the
real issue in dispute between
plaintiff co and defendant co.
he expressed himself thus:—
“The existence of the
contractual relationship which
in real terms is between the
plaintiffs and the defendants
places the defendants in a
position in which they can deal
directly with the plaintiffs and
pursue any claim arising out of
the contractual relationship
which
has been brought into being by
the activities of IPCO who acted
on common agents of both
parties.” With respect to the
trial judge, the case before him
was simply the claim by
plaintiff co that defendant co,
breached a contract of carriage
by sea of fish belonging to
plaintiff co by defendant co.
the plain duty of the trial
judge was to determine whether
or not on the evidence before
him the defendant co. breached
the contract of carriage of the
fish. In my view whether or not
the defendant co. could
counter-claim for non-payment of
auto gas supplied to the
plaintiff co was not an issue
raised on the pleadings in the
case before him. Indeed the
trial judge did recognise that
defendant co. had “a claim to
pursue against the plaintiff co
and also against IPCO". In the
present case the defendant Co.
had not pursued “that claim"
against the plaintiff co. The
trial judge, suo moto, put up
that counter-claim. He erred in
law in putting up a
counter-claim for defendant co.
This was how the trial judge
expressed himself:—
"In any case, I do not think
that this attempt by the
plaintiffs to treat the carriage
of fish to the three
destinations as a separate
transaction between the
plaintiffs and defendants would
serve any purpose .........…..
Therefore an attempt to separate
the previous transaction of
supply of AGO and fish from the
transport of fish which is the
subject matter of this
litigation would not be
appropriate ……………”
From the trial judges
appreciation and understanding
of the case before him, there
were plainly and clearly three
separate and unrelated
transactions. These are: (1)
The contract to supply A.G.O;
(2) the contract to supply fish;
and (3) the contract “to
transport” fish. In law the
three separate contracts gave
rise to three separate causes of
action. There was only one
contract before the trial court,
and the trial court was called
upon to determine and pronounce
on the reliefs claimed in the
writ of summons. The trial judge
erred in the opinion expressed
as follows:—
"The opinion of the Court is
that the three bills of lading
do not evidence any new
agreement independent of the
barter agreement existing
between them. It would not do
if we restrict ourselves to the
three bills of lading although
by the nature of the plaintiffs
claim the Court is called upon
to do just that and limit itself
to the three bills of lading."
The trial judge gravely erred in
the view he took of the case
before him. The defendant co.
made it plain and clear in its
statement of defence that the
agreement to supply AGO to the
vessel mentioned in evidence
were not entered into by the
plaintiff co. either directly or
indirectly. The defendant co.
failed and or omitted to
counter-claim any relief against
the plaintiff co. Again the
defendant co. failed and or
omitted to join and claim
against IPCO as a party to the
action it under that agreement.
More importantly defendant co.
failed and or omitted to put in
issue for determination "the
better agreement " which
agreement the trial judge, suo
moto, raised as an issue for his
determination. In any case the
defendant co. did admit the
claim of the plaintiff co. at
para 15 of the statement of
defense thus:
"15 Save that the defendant
admits that its vessel carrying
the fish did not go to Abidjan
para 4 of the statement of claim
is denied."
The evidence on record fully
supported the above admission,
namely that all the fish on the
vessel were discharged and
off-loaded at Tema. In my view
the plaintiff co was entitled to
judgment on the admission in the
absence of a set-off by way of a
counter-claim properly
formulated for consideration by
the trial court. This right was
not exercised by the defendant
co in the action.
Finally finding that the
judgment of the trial judgment
cannot be supported is
established and proved by the
passage following from the
judgment:—
“In his written address counsel
for defendant Co, sought to
demonstrate that going by the
figures provided by the
representative of IPCO, Pw1 in
his oral evidence the defendants
would not in any way be indebted
to the plaintiffs. I do not
intend to go into that aspect of
the case for the simple reason
that that is completely
unrelated to the plaintiff’s
claim which has to do with
breach of contract which
according to them is evidence by
the three bill of lading”.
To express the real issue in
dispute between plaintiff co and
defendant co. the real issue
trial judge stated his
perception as follows:—
“It means therefore that for our
purposes we have to limit
ourselves to the issue of breach
of contract raised by the
plaintiffs pleadings.”
In my opinion that was the only
issue for trial. The defendant
co. had not and did not raise
any issue by way of
counter-claim for determination
by the trial judge. The real
issue in dispute between the
parties, was whether or not the
defendant co. breached the
contract of carriage of fish to
Abidjan and Lagos respectively.
The simple and plain case of the
plaintiff that the consignment
of fish intended and destined
for Abidjan and Lagos never
reached these two places was
admittedly proved by the
evidence on record the judgment
on this issue was wrong and
cannot be supported. In the
result I find that in respect of
the consignment of fish to be
discharged and off loaded at
Tema the defendant co. was not
on breach of contract and the
judgment in favour of defendant
co was right in law. The appeal
succeeds in part. There will be
judgment for the plaintiff in
respect of the breaches of
contract in relation to the
bills of lading for Abidjan and
Lagos respectively. The
judgement in respect of the
consignment of fish to Tema and
discharged and off-loaded at
Tema is hereby affirmed.
G. L. LAMPTEY
JUSTICE OF APPEAL
TWUMASI, JA:
This is an appeal against the
judgement of the High Court,
Accra, delivered on the 19th
January 1996 in favour of the
respondent, then defendant to
the law suit. The appellant, a
company registered in
Mauritania, brought the suit or
action against the respondent, a
company registered in Ghana,
claiming damages for breach by
the respondent of a contract
under which the latter agreed
for a fee, to convey specified
quantities of fish to specified
consignees in Abidjan, Lagos,
and Tema respectively, and for
fraudulent conversion of the
said fish. Further claims all of
which cannot be enumerated but
are on record were made for an
order against the respondent for
the return to the appellant as
owners of the fish or its
release to the accredited
consignees in the aforementioned
cities. An order of injunction
against the respondent was
requested by the appellant to
literally consummate its
composite claim. Some
reasonably detailed account of
the appellant case and that of
the respondent would advance a
fuller and better understanding
of the crucial issues of law
that predominated the trial
vis-a-vis the issues of fact
which were, to a large extent
not in serious contention
between the parties. The
respondent agreed to discharge
178.30 metric tonnes of fish
belonging to the appellant on
the terms highlighted above. The
carriage was accompanied by
three bills of lading each of
which described and named the
consignee to which or whom the
respondent was to deliver the
fish in their respective
proportions. The bills of lading
were tendered at the trial as
Exhibit A Exhibit A1 and Exhibit
A2 without any objection. Also
tendered and admitted without
any objection was an affidavit
sworn to by the captain of the
respondent’s vessel
register-named “M/V Hilda A” by
which he acknowledged receipt
from the appellant of 1782.30
metric tonnes of fish and stated
further in what I may call a
memorandum of understanding the
following words of commitment:—
“(3) I accept to transport the
said cargo to its destinations
vis
- Abidjan (Improper) 1005.27 M/T
- Tema (Kiku Ltd.) 406.17
M/T
- Lagos (IPCO) 370.86
M/T/
(4) I confirm that my company
Kiku Co. Ltd. Is transporting
the said cargo at the rate of
$70 (70 US Dollars) per metric
ton to its ports of
destination.”
In view of the foregoing
attestation I affix my signature
and my vessel stamp to this
document and submit same to the
owners of the said merchandise
as proof of my responsibility.”
The facts as I have endeavored
to portray on the part of the
appellant were culled from
paragraphs 1 to 5 of the amended
statement of claim filed on the
6th July 1993. The case of the
respondent on the other side was
that a certain amount of money
which was due and owing to it
from a company called “Erongo”
was paid to another company
called International Processing
Company Ltd. registered in
Nigeria (hereinafter called
“IPCO”) for onward transmission
to the respondent but IPCO did
not honour the obligation.
Instead IPCO used the money in
purchasing gas oil for use by
vessels belonging to the
appellant and part of the money
was used to charter vessels for
supplying some 3,300 tons of gas
oil for the appellant's vessels.
The respondent further alleged
that its two vessels "Hilda A"
and “Sandra” A carried to the
appellant's trawlers additional
quantity of gas oil bringing the
overall supply of gas oil to
4,090 metric tonnes. The oil
supplied valued $818,000.00
(818US Dollars). The respondent
averred in paragraph 11 of its
statement of defense that IPCO
arranged with the appellant to
pay the respondent for the gas
oil supplied to it in kind, that
is, with fish and undertook to
pay the respondent if the
appellant dispatched 718 metric
tonnes of fish at $240.00 per
ton as part payment. At this
juncture I would rather than
paraphrasing reproduce
paragraphs 12 to 17 of the
respondent's statement of
defense:—
12. Subsequent to this delivery
the defendant was informed by
IPCO that the plaintiff was
ready with another consignment
of fish to complete the payment
of the gas oil the defendant
therefore dispatched its vessel
'Hilda A' to the plaintiff to
collect the fish.
13. The defendant says that the
plaintiff loaded the defendant's
said vessel with 1782.30 metric
tonnes of fish and then issued
Liner Bills of Lading to the
Captain purporting to consign
the fish to consignees in
Abidjan and Lagos with a small
quantity to the defendant
without any prior notice to the
defendant.
14. The defendant says that the
purported re-designation of the
fish to consignees other than
the defendant was a breach of
the accord reached between the
plaintiff and the defendant
acting through IPCO and that it
was calculate to delay or defeat
the defendant’s right to be
paid.
15. The defendant says it was
justified in ordering its
captain to discharge the fish in
Tema as previously agreed upon.
16. The defendant says that its
vessels do not ply for hire but
carry its own goods.
Consequently when it went for
the 1782.30 tonnes of fish it
did not require any bill of
lading. The defendant will
contend that a bill of lading is
only prima facie evidence of a
contract between ship owner and
shipper, not the contract itself
and that at no time did the
defendant agree to carry the
plaintiff’s fish for a fee or
otherwise.
17. Paragraph 5 of the statement
of claim is denied. The
defendant says that the
discharge of the fish was
legitimate and pursuant to a
previous agreement meant to
enable the plaintiff to pay to
the defendant the cost of fuel
supplied to it from founds
belonging to the defendant.
From a careful study of the
judgment the following findings
of fact and conclusions of law
drawn from them appear very
transparent on the record
namely:—
(a) that prior to the day the
disputed consignment of fish was
put on the vessel Hilda A in
Mauritania and the bills of
lading were prepared and
executed, an agreement existed
between the appellant and the
respondent and this was a barter
agreement whereby the parties
agreed to trade in fish and gas
oil on barter basis
(b) that the said agreement had
come into existence through the
instrumentality of IPCO
(c) that IPCO was the agreed
common agent of the parties
(d) That the three bills of
lading could not constitute a
contract between the parties
whatever their execution — At
page 184 of the record the
learned judge put the matter
beyond all peradventure thus:
“Since the court has come to a
conclusion that on new
agreement, independent of the
earlier barter agreement was
brought into being by the three
bills of lading the whole basis
of the plaintiff’s claim is
eroded which would not allow
their claim to succeed?
(e) That the respondent had
therefore acted lawfully within
the perimeters of the barter
agreement in taking the disputed
fish.
With these positive findings and
conclusions, the learned trial
judge found no difficulty
whatsoever in dismissing the
claim of the appellant. Against
this decision the appellant has
appealed on a number of
grounds. First learned Counsel
for the appellant argued
together his additional grounds
A & B. The cutting edge of that
argument was that the learned
trial judge misdirected himself
on the law when he held that the
three bills of lading did not
constitute a binding contract
between the appellant and the
respondent. Counsel hurled
strictures on the learned trial
judge for what he termed
“introducing extraneous matters
into the contract of
affreightment” Counsel contended
that there was contract of
carriage between the appellant
and the respondent evidenced by
the three bills of lading and
the respondent was under an
obligation to comply with the
said terms and conditions to the
specified consignees and
consequently the respondent was
guilty of a breach of contract
when it appropriated the fish to
itself. By ‘extraneous matter’ I
understood counsel to be making
an obvious reference to the
barter agreement which the
learned trial judge accepted as
the operative and binding
contract and upon which the
respondent based its defense of
justification for the seizure of
the disputed fish.
As counsel for the appellant
pointed out and, rightly in my
view, the burden of persuasion
lay squarely on the respondent
to establish the plea of
justification which implied an
admission that it committed the
act complained of but no legal
sanction can be attached to it.
And the burden is: Was there in
law any proof of a contract
between the appellant and the
respondent? If there was any
which one was it? I have
carefully examined the record of
the appeal in its entirely,
particularly answers to
questions in cross-examination
of the witnesses but I was
unable to lay hands to the real
indicator of the truth anywhere
else than the following
testimony of Pw1 the Managing
Director of IPCO at page 86 of
the record and I quote:
“I know the Plaintiff Company, I
also know the Defendant
Company. The plaintiff is
supplier of fish from Mauritania
to my company. My company works
together with the Defendant
Company in Nigeria, Lagos and
Warri to import fish on his
vessels Hilda A and Sandra A.
My company’s arrangement with
SPP is to supply us with frozen
fish from Mauritania such as
Horse Mackerel, Sardinella
Mackerel. The terms are that
they supply us with fish and we
pay them either by transfer on
L.C. or by Cash. I do not know
of any arrangement between SPP
and Kiku Co. Ltd. There is an
arrangement between me and the
plaintiff to send the plaintiff
vessels to transport fish”.
This testimony speaks for
itself. Then on the issue of
supply of gas oil for fish, the
following question and answer
during cross-examination of
respondent’s representative
appears at page 141 of the
record:
Q. Who accounts to Kiku for the
Ago and for the sale of your
fish?
A. It is IPCO
Q. You keep account with IPCO?
A. They keep my account.
Q. Therefore if any oil or
fish is due to you the people
you ask to account is IPCO?
A. Ordinarily yes. The same
people asked me to go to
Mauritania to the plaintiff’s to
collect fish.
With these pieces of evidence
considered along with several
others of similar import and
connotation it is my holding
that the view held by the
learned trial judge that IPCO
was the common agent to both the
appellant and the respondent was
unsupportable. The true colour
of IPCO, as I see it, is that of
a master mind for both parties
whom it exploited to its
business advantage as and when
the occasion became propitious.
A clear example can be found
from the pleadings of the
respondent where it is averred
the IPCO induced it to establish
letters of credit in a bank upon
a guarantee made by IPCO to pay
the money if the appellant
defaulted to pay IPCO. There
was no evidence that the
appellant ever became aware of
this arrangement between IPCO
and the respondent. It is trite
law that in a true agency
transaction, an agent must
communicate to his principal the
commitments made on his behalf
for ratification within a
reasonable time. The stance I
have taken of the case is
supported by exhibit D when
carefully studied and construed
in its full tenor. The contents
of Exhibit D are clear testimony
of the fact that at some stage
both the appellant and the
respondent realised the extent
to which IPCO had horse-ridden
both of them. Throughout the
trial it was the respondent,
rather than the appellant who
had insisted that IPCO had been
acting as common agent. The
appellant had never as far as
the record went regarded or
treated IPCO as a common agent
to both parties. In my humble
assessment of the evidence, I
was unable to share the holding
of the learned trial judge that
a barter agreement subsisted
between the appellants and the
respondent. The business
arrangement that existed was, as
far as I could discern from the
record was between IPCO and the
respondent with regard to
exchange of gas oil for fish.
I now proceed to consider
additional grounds C & D which
touched upon the legal status of
the three bills of lading
Exhibits A, A1 and A2. On this
legal issue I wish to throw a
search light on a passage at p.
44 of the 10th edition of
Carver’s “Carriage of Goods By
Sea”:—
“A doubt has sometimes been
raised whether the bill of
lading is a conclusive statement
of the contract between the
shipper and shipowner, or is
only one piece of evidence,
helping with others to show that
the contract is, and so subject
to be contradicted, or varied or
added to, by verbal or other
evidence, to show the agreement
between the parties. The
question is important, for if
the bill of lading is the
statement of the contract; it
cannot, in the absence of fraud
or mistake be altered or added
to by any evidence of
preliminary or contemporaneous
negotiations or agreements on
the subject matter of the
contract."
The learned author further
recognizes that there is
conflict of authority on the
subject but he prudently
concludes his discussion on the
issue by the following opinion
at P.47 of the book:—
“The true view of the
authorities may be that it
depends on the facts of each
case whether the bill of lading
contains the actual contract.”
All that the learned author has
succeeded in doing, like all
other text writers is to throw
us back to basics, that is the
question of whether in a given
constellation of facts a
contract in law really exists.
My elementary knowledge about a
contract starts with the word
agreement. The term agreement
is often employed to signify a
state of affairs where the minds
of two persons or parties who
are negotiating an arrangement
have arrived at a definite and
identical conclusion, a position
which is technically described
as “consensus ad idem” An
agreement of this nature which
is intended by the parties to
have legal consequences is best
described as a contract. It
always consists of or involves
exchange of promises and such
promises if intended to be
binding are called contract: See
Perbi v. Attorney General (1974)
2 GLR 167 on offer and
acceptance, Addo v. Hartey
(1972) 2 GLR 318 CA on exchange
of promises and again Perbi v.
Attorney-General on intention to
create legal relations. I also
had the opportunity of reading
the case of Buama v. Oppony
(1992) 2 GLR 213 HC where Benin
J. (as he then was) dealt with
the basic principles of contract
citing the leading English
authorities and with particular
reference to the liability of
persons who undertake to carry
goods for a fee but fail to
ensure that the goods reach
their destination. Above all,
there was the West African Court
of Appeal case of G.B. Ollivant
Ltd. v. Arab (1955) 15 WACA 9
where the following headnote
appears: “Carriage of
goods—Independent
contractor—Conversion of goods
by servants committed in the
course on employment.” All
these case raise a very serious
indictment against any person
who undertakes for a fee to
convey goods belonging to
another person but appropriates
the goods to his own use. The
respondents testifying before
the trial court through their
representative stated that they
exercised a lien on the fish.
But the question that arises is:
Upon what contract did the
respondent purport to exercise
the lien. The law is that a lien
arises by contract or more
usually by accepted usage or
custom. A general lien which
arises from contract is a right
to detain goods not only for
debts incurred in connection
with them, but also for a
general balance of account
between the owner and the
possessor, but no lien can arise
unless the goods over which the
lien is claimed have come
lawfully into the possession of
the person who claims the lien
in the ordinary course of
business: See Sundolf v. Alfred
(1883) 3 M & W (Messon & Welsby)
248. In the instant case as the
IPCO representative Pw1 stated
in his evidence at P.86 and I
quote:
“I do not know of any
arrangement between SPP and Kiku
Co. Ltd. There is an arrangement
between me and the plaintiff
(i.e. SPP) to send the plaintiff
vessels to transport fish”.
Also in Exhibit D which can be
found at P.193 of the record of
appeal in the last paragraph,
the respondents are recorded to
have stated in a letter
appellant the following:—
“However if at the conclusion of
accounting reconciliation
between the defendant and IPCO
regarding the total business
transacted, including deliveries
of AGO to your good selves any
account is due form us to IPCO
we undertake to pay the amount
due to cover the cargo to you”.
In my humble understanding the
above statement unequivoably
demonstrates or reflects the
uncertain and indeterminate
legal relationship that existed
between the respondent and the
appellant all due to the
intermeddling role of IPCO.
Under such circumstances, when
there was the need to go into
the state of accounts between
the stakeholders in the bizarre
business scenario, it was in my
view improper for the respondent
to seize the fish under the
guise of a lien. As counsel for
the appellant rightly submitted
relying on the celebrated case
of Foaser v. Telegraph
Constrictions Co. (1872) LR 7 QB
566 at 571 where Blackburn J
said:
“The bill of lading must be
taken to be the contract under
which goods are shipped and
until I am told differently by a
Court of or I shall so hold”.
The three bills of lading
tendered in this case as Exhibit
A, A1 and A2 constituted a
contract between the parties.
The facts of the Fraser case
(supra) showed that the shipper
signed the bill of lading. In
the instant case, the captain of
the Hilda A, the respondents
vessel, signed an undertaking
Exhibit B swearing that he would
deliver the goods to the
consignees named in the bill of
lading. The facts of this case,
therefore, fall on all fours
with Fraser’s case. On the
authorities, Fraser’s case is
good law (see detailed analysis
at pages 44 – 48 of Carvier’s
“Carriage of Goods By Sea”
(supra). In my judgment the
learned trial judge erred when
he held that the bills of lading
in the instant case did not
constitute a binding contract
between the appellant and the
respondent. The respondent was
in clear breach of contract and
it had no justification
whatsoever in taking possession
of the consignment of fish
intended for consignees in Lagos
and Abidjan. The fact that the
appellant company’s Managing
Director reported the conduct of
the Minister of Agriculture is
to me clear evidence that the
appellant had not been made
aware of the true nature of the
business transaction in which he
had got his company involved. I
am sure that the appellant has
learnt his lesson. For the
foregoing reasons, I would allow
the appeal. The judgment of the
High Court is hereby set aside.
In lieu thereof judgment is
entered for the appellant.
P. K. TWUMASI
JUSTICE OF APPEAL
COUNSEL
AMATEIFIO FOR APPELLANT
DR. TWUM FOR RESPONDENT |
